SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006

SEMPER FI?1 THE INFIDELITY OF THE SEVENTH CIRCUIT IN APPLYING A GOOD MORAL CHARACTER REQUIREMENT TO NATURALIZING WAR VETERANS

∗ JOSHUA P. MONTGOMERY

Cite as: Joshua P. Montgomery, Semper Fi? The Infidelity of the Seventh Circuit in Applying a Good Moral Character Requirement to Naturalizing War Veterans, 2 SEVENTH CIRCUIT REV. 380 (2006), at http://www.kentlaw.edu/7cr/v2- 1/montgomery.pdf.

INTRODUCTION

O’Sullivan v. United States Citizenship and Immigration Service presented the U.S. Court of Appeals for the Seventh Circuit with a question of first impression.2 That is, whether “aliens who served honorably in the U.S. military in times of war [must make] a showing of good character when applying to become naturalized citizens.”3 Unfortunately for these veterans, the Seventh Circuit incorrectly interpreted the plain language of the naturalization statutes and held that such aliens must show good moral character before becoming citizens.4 Particularly troubling is the reasoning by which the court

1 Semper Fi is the motto of the Marine Corps and is short for the Latin phrase simper fidelis, which means “always faithful.” http://hqinet001.hqmc.usmc.mil/HD/ Historical/Customes_Traditions/Marine%20Corps_Motto.htm. ∗ J.D. candidate and Certificate in Litigation and Alternative Dispute Resolution candidate, May 2007, Chicago-Kent College of Law, Illinois Institute of Technology; B.A. Political Science, 2001, University of Arizona. I am deeply indebted to my wife, Stephanie, for all of her support and encouragement throughout my time in law school. 2 453 F.3d 809, 814 (7th Cir. 2006). 3 Id. at 812. 4 Id. at 816.

380 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 reached its conclusion.5 In order to provide aliens with this additional hurdle in the naturalization process, the court misquoted a key statute and employed a logic riddled with contradiction.6 Specifically, this Note will contend that the Seventh Circuit erred in O’Sullivan when it held that the standard naturalization requirement that aliens prove “good moral character”7 also applies to aliens seeking to naturalize through statutory exceptions extended to wartime veterans.8 The court should have held that, based on a plain reading of these statutes, a showing of good moral character is not required for wartime veterans to naturalize. Section one of this Note will explain the interaction of the naturalization statutes at issue in O’Sullivan. Section two will explain why the court correctly declined to defer to Citizenship and Immigration Services to interpret these statutes. Section three will describe the background and procedural history of O’Sullivan. Section four will explain the case law cited by the Seventh Circuit in the O’Sullivan decision. Finally, section five will identify errors in the court’s analysis.

I. AN INTRODUCTION TO THE IMMIGRATION STATUTES APPLICABLE TO ALIEN WAR VETERANS SEEKING TO NATURALIZE

Justice Scalia once noted that “administrative law is not for sissies.”9 This is particularly true when attempting to elucidate consistent meanings from immigration and naturalization statutes, which have been described as a “labyrinthine . . . maze of hyper- technical statutes and regulations that engender . . . confusion for the

5 See id. at 815-16. 6 Id. at 815 (misquoting 8 U.S.C.S. § 1427(a) by replacing the word “referred” with the word “mentioned”). 7 8 U.S.C.S. § 1427(a)(3) (LexisNexis 2006). 8 8 U.S.C.S. § 1440(b)(1)-(3) (LexisNexis 2006). 9 Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 511 (Administrative Law Lecture, delivered at Duke University School of Law, January 24, 1989).

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Government and petitioners alike.”10 The problem presented in O’Sullivan is particularly difficult: “whether [§] 1440 excuses aliens who served honorably in the U.S. military in times of war from making a showing of good moral character when applying to become naturalized citizens.”11 The difficulty in answering this question stems from the extensive interplay between 8 U.S.C.S. §§ 1427, 1439, and 1440.12 To limit confusion in this Note, the plain language of these statutes is provided in pertinent part below, along with a brief overview of how they interact.

A. 8 U.S.C.S. § 1427(a)

8 U.S.C.S. § 1427 details the fundamental residency requirements necessary to become a naturalized citizen of the United States,13 such as the requisite length of time one must be physically present in this country and the different types of absences that are permitted during this period.14 This statute also includes the good moral character component at issue in O’Sullivan.15 Specifically, in relevant part, § 1427 states:

(a) Residence. No person, except as otherwise provided in this title, shall be naturalized unless such applicant . . . (3) during all the periods referred to in

10 Reply Brief of Petitioner-Appellant, at *1, n.1, O'Sullivan, 453 F.3d 809, No. 05-2943, (7th Cir. October 28, 2005) (citing Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003)), 2005 WL 3738527. 11 O’Sullivan, 453 F.3d at 812. 12 Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 379 (D.N.Y. 2003) (observing that “[w]ading through the statutory scheme is not a simple task because . . . the immigration laws are a patchwork, containing numerous inconsistencies and vagaries.”) (internal cites omitted). 13 O’Sullivan v. United States Citizenship & Immigration Serv., 372 F. Supp. 2d 1097, 1100 (D. Ill. 2005) aff’d, 453 F.3d 809, (stating that “[s]ection 1427(a) sets forth the general requirements for naturalization”). 14 8 U.S.C.S. § 1427(a)-(c) (LexisNexis 2006). 15 8 U.S.C.S. § 1427(a)(3); O’Sullivan. 453 F.3d at 812-13.

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this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.16

The confusion in O’Sullivan “stems from the good character requirement’s placement in the naturalization statute” as a subset of the broader residency requirement.17 The reason this placement is problematic is because the residency requirements of § 1427(a) are not applicable to naturalizing aliens who served in the armed forces during times of war.18 Thus, the question in O’Sullivan is whether the good moral character requirement in § 1427(a)(3), is waived when the broader residency requirements to which it is attached, § 1427(a), are waived.19

B. 8 U.S.C.S. § 1427(e)

In its conclusion that alien wartime veterans are required to make a showing of good moral character, the court relied, in part, on 8 U.S.C.S. § 1427(e).20 This section of the naturalization statute allows the Attorney General, when considering an applicant’s moral character, to consider conduct occurring prior to the five year period21

16 8 U.S.C.S. § 1427(a) (emphasis added). 17 O’Sullivan, 453 F.3d at 812. 18 8 U.S.C.S. § 1440(b)(2) (LexisNexis 2006) (stating that a “person filing an application under subsection . . . shall comply in all other respects with the requirements of this title, except that . . . no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required”). 19 O’Sullivan, 453 F.3d at 813. 20 Id. at 815. 21 8 U.S.C.S. § 1427(a)(1) (stating “immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time and who

383 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 preceding the filing of a naturalization application.22 Specifically, § 1427(e) states:

(e) Determination. In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant’s conduct during the five years preceding the filing of the petition, but may take into consideration as a basis for such determination the applicant’s conduct and acts at any time prior to that period.23

The O’Sullivan court found it particularly persuasive that this section of § 1427 distinguished between “good moral character” and “other qualifications for citizenship.”24

C. 8 U.S.C.S. § 1440(b)

8 U.S.C.S. § 1440 provides aliens that served in the United States military during times of war a short cut to become naturalized.25 This short cut is achieved by waiving the standard residency requirements detailed in § 1427(a) that are otherwise necessary to naturalize.26 Specifically, § 1440(b) provides this exception:

has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months”). 22 8 U.S.C.S. § 1427(e) (LexisNexis 2006). 23 Id. 24 O’Sullivan, 453 F.3d at 815. 25 For example, when President George W. Bush issued an executive order that declared “the war against terrorists of global reach” an “armed conflict” it was done “solely in order to provide expedited naturalization for aliens and noncitizen nationals serving in an active-duty status in the Armed Forces of the United States.” Exec. Order No. 13,269, 67 FR 45,287 (July 8, 2002) (emphasis added). 26 O’Sullivan, 453 F.3d at 813.

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(b) Exceptions. A person filing an application under subsection (a) of this section shall comply in all other respects with the requirements of this title, except that-- . . . (2) no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required;27

This exception is unique to wartime veterans;28 another statute govern the naturalization of veterans that served during times of peace.29

D. 8 U.S.C.S. § 1439

8 U.S.C.S. § 1439 is often viewed as the naturalization statute for alien veterans serving in times of peace.30 While it does govern veteran peacetime naturalization,31 it also applies to any alien that has “served honorably for one year in the military” regardless of whether that service was during a time of conflict.32 Thus, “[m]any service members will now be eligible [to naturalize] under both [§ 1439] and [§ 1440], though their application may only be filed under one provision.”33

27 8 U.S.C.S. § 1440(b) (LexisNexis 2006). 28 8 U.S.C.S. § 1440(a) (requiring that any veteran naturalizing under this statute must have served during a “period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force”). 29 See 8 U.S.C.S. § 1439 (LexisNexis 2006). 30 See, e.g., O’Sullivan, 453 F.3d at 815 (stating that § 1439 “sets out the naturalization requirements for peacetime veterans”). 31 This Note will follow the lead of the O’Sullivan court and refer to § 1439 as a “peacetime” naturalization statute for the sake of consistency and for the ease of the reader. 32 Major Michael Kent Herring, A Soldier's Road to U.S. Citizenship--Is a Conviction a Speed Bump or a Stop Sign?, Army Law., June 2004, at 20, 23. 33 Id. at n.57.

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Like § 1440, § 1439 relaxes the naturalization requirements of § 1427 for alien veterans serving in the military.34 This statute, however, only lessens the residency requirements; it does not do away with them entirely.35 Significantly, § 1439 also includes an explicit good moral character provision.36 This provision requires:

(e) Moral character. Any such period or periods of service under honorable conditions, and good moral character, attachment to the principles of the Constitution of the United States, and favorable disposition toward the good order and happiness of the United States, during such service, shall be proved by duly authenticated copies of the records of the executive departments having custody of the records of such service, and such authenticated copies of records shall be accepted in lieu of compliance with the provisions of [8 USCS § 1427(a)].37

This requirement has no counterpart in 8 U.S.C.S. § 1440.38

E. 8 C.F.R. § 329.2(d)

Federal regulations also affect judicial interpretation of these naturalization statutes when deference is afforded to the Immigration and Naturalization Service (“INS”), Citizenship and Immigration

34 Id. at 23-24. 35 8 U.S.C.S. § 1439(d) (LexisNexis 2006) (stating that an “applicant shall comply with the [residency] requirements of [§1427], if the termination of such service has been more than six months preceding the date of filing the application for naturalization, except that such service within five years immediately preceding the date of filing such application shall be considered as residence and physical presence within the United States”). 36 8 U.S.C.S. § 1439(e). 37 Id. 38 8 U.S.C.S. § 1440 contains only three sections: “(a) Requirements”; “(b) Exceptions”; and (c) a revocation of citizenship provision.

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Services (“CIS”), or other administrative agencies.39 “Because Congress did not specify the time period during which a qualifying noncitizen veteran should demonstrate good moral character, the [INS] promulgated a regulation” to answer that question.40 Specifically, that regulation states that an applicant:

(d) Has been, for at least one year prior to filing the application for naturalization, and continues to be, of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States;41

II. CHEVRON DEFERENCE

Although the question of whether § 1440 has an implied good moral character requirement is an issue of first impression, litigation surrounding this requirement is not new.42 But courts often possess a mechanism to answer difficult questions of statutory interpretation: deference to the administrative agency that is responsible for enforcing the naturalization statutes.43 This deference, known as Chevron

39 See, e.g., Boatswain v. Gonzales, 414 F.3d 413, 416-17 (2d Cir. 2005); Lopez v. Henley, 416 F.3d 455, 457-58 (5th Cir. 2005); Nolan v. Holmes, 334 F.3d 189, 197-98 (2d Cir. 2003). 40 Santamaria-Ames v. Immigration and Naturalization Serv., 104 F.3d 1127, 1129 (9th Cir. 1996). 41 8 C.F.R. § 329.2(d) (LEXIS 2006). 42 See, e.g., Petitions for Naturalization of F—G-- & E—E—G--, 137 F. Supp. 782 (D.N.Y. 1956) (denying Petitioners’ naturalization because they could not show good moral character as a result of committing adultery during the “five years preceding the filing of their petitions.”); In re Brodie, 394 F. Supp. 1208, 1211 (D. Or. 1975) (holding that homosexuality, while not “conform[ing] to the preferences of the majority” does not preclude a showing of good moral character). 43 See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999) (stating “that judicial deference to the Executive Branch is especially appropriate in the immigration context”); but see Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir. 2004) (stating that “[s]ince the Board hasn’t done anything to particularize the meaning of

387 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 deference, becomes available when a court is faced with interpreting an ambiguous statute.44 In that instance, a court cannot “simply impose its own construction . . . ,” but must inquire as to whether the administrating agency has promulgated a relevant interpretation of the statute at issue.45 If an administrative interpretation exists, then the court must determine if that construction of the statute is reasonable.46 If it is, then Chevron deference applies and the court can rely upon the agency interpretation.47 There are circumstances, however, when reliance on Chevron deference is inappropriate.48 For example, if there are certain substantive issues present, such as strong constitutional claims49 or because of the procedural context of the case generally.50 In O’Sullivan, the Seventh Circuit correctly decided not to defer to CIS, because the judicial review of a claim for citizenship must be made de

‘crime involving moral turpitude,’ giving Chevron deference to its determination of that meaning has no practical significance”). 44 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842- 43 (1984). 45 Id. 46 Id. 47 Id. 48 E.g., Gonzales v. Oregon, 126 S. Ct. 904, 914-15 (2006) (explaining that “[d]eference in accordance with Chevron, however, is warranted only ‘when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’” (citing United States v. Mead Corp., 533 U.S. 218, 226-227 (2001)). 49 Whitaker v. Thompson, 353 F.3d 947, 952 (D.C. Cir. 2004) (acknowledging “that the canon of constitutional avoidance can trump Chevron”); see Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (holding that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”). 50 See, e.g., 8 U.S.C.S. § 1421(c) (LexisNexis 2006) (stating that a review of a denial of citizenship “shall be de novo, and the court shall make its own findings of fact and conclusions of law”).

388 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 novo.51 Because the court could not use Chevron deference to defer to CIS’s interpretation of the naturalization statutes, it follows that it is improper for the court to rely on case law where such deference was given.52 However, arguably because of a lack of case law on this issue, the court did consider cases from other circuits where Chevron deference was given to the CIS (or INS) interpretation of the good moral character requirement.53 In fact, none of the cases to which the court cites addresses whether “§ 1440 entirely excuses qualifying aliens from the good moral character requirement” in a way that is on point with the present case.54 To its credit, the court does not specifically cite to any of these cases when it gives its holding, but it uses them as a backdrop to support the new rule it established in the Seventh Circuit.55

III. BACKGROUND ON O’SULLIVAN

When he was twelve, Daniel O’Sullivan moved from Jamaica to the United States.56 After graduating from high school, O’Sullivan

51 O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 811-12 (7th Cir. 2006) (relying on 8 U.S.C.S. § 1421(c) that states a review of a denial of citizenship “shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application”); see, e.g., Adiemereonwu v. Gonzales, 2005 U.S. Dist. LEXIS 9681, at *11 (D. Tex. 2005) (explaining that “if CIS denies a naturalization application -- and that denial has been confirmed after an administrative appeal, consisting of a hearing before a senior naturalization officer -- the rejected applicant may seek de novo judicial review of the denial in the United States district court for the district in which he resides”). 52 See O’Sullivan, 453 F.3d at 812, n.2 (criticizing Boatswain v. Gonzales, 414 F.3d 413 (2d Cir. 2005) for relying on Nolan v. Holmes, 334 F.3d 189 (2d Cir. 2003) and “the petitioner’s concession that the statutory interpretation upheld as reasonable in Nolan was binding in this new [de novo] context”). 53 O’Sullivan, 453 F.3d at 814-15. 54 Id. at 812. 55 Id. at 812-16. 56 Id. at 810.

389 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 entered active military duty in September 1976 where he “served in the Marines and the Air Force during the Vietnam hostilities and was honorably discharged from the military in December 1981.”57 After leaving the military O’Sullivan “had children, was consistently employed, and paid taxes.”58 However, in August, 2000, he was convicted of the aggravated felony of being “party to the crime of manufacture or delivery of less than five grams of cocaine.”59 After serving his sentence in Wisconsin state prison, O’Sullivan “was immediately transferred to the custody of the Department of Homeland Security which had initiated removal proceedings against him while he was incarcerated.”60 In the midst of the removal proceedings, O’Sullivan filed a petition to become a naturalized citizen under 8 U.S.C. § 1440.61 However, his petition was denied because of an inability to satisfy the good moral character requirement based on his aggravated felony conviction.62 O’Sullivan appealed, but was denied by CIS, and subsequently denied by a federal district court under the same rationale.63 Before the Seventh Circuit, O’Sullivan argued that the good moral character requirement in § 1427(a) refers only to the specific time periods of mandatory residence mentioned in § 1427(a)(1)-(2).64 Because § 1440(b) removes any obligation to satisfy that residency requirement, there is no time period to which the good moral character requirement could possibly attach.65 Consequently, O’Sullivan

57 O'Sullivan v. United States Citizenship & Immigration Servs., 372 F. Supp. 2d 1097, 1098 (D. Ill. 2005) 58 O’Sullivan, 453 F.3d at 810. 59 Id. 60 Id. at 810-11. 61 Id. at 811. 62 Id.; see 8 USCS § 1101 (f) (8) (LexisNexis 2006) (barring anyone “who at any time has been convicted of an aggravated felony” from making a showing of good moral character). 63 O’Sullivan, 453 F.3d at 811. 64 Reply Brief of Petitioner-Appellant, at *2, O'Sullivan, 453 F.3d 809, No. 05- 2943, (7th Cir. October 28, 2005), 2005 WL 3738527. 65 Id.

390 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 maintains that under a plain reading of § 1440, aliens that qualify for naturalization under this section need not make a showing of good moral character.66 O’Sullivan supported this interpretation by comparing and contrasting the two different statutes under which veterans may naturalize, § 1439 and § 1440.67 As stated in Section II, § 1439 relaxes the naturalization requirements of § 1427 for those veterans of the military in times of peace, but nonetheless explicitly includes a good moral character requirement.68 A requirement for which there is no equivalent in § 1440.69 O'Sullivan urged the court “to find that the express mention of a moral character requirement for peacetime veterans shows that Congress would have expressly required wartime veterans to prove good moral character, if that was Congress's will.”70 Despite these arguments, on July 6, 2006, a three-judge panel of the Seventh Circuit issued a unanimous decision affirming “the district court’s denial of O’Sullivan’s petition for naturalization.”71 This panel, composed of Chief Judge Flaum, who wrote the opinion, and Judges Posner and Kanne,72 held that Congress viewed the good moral character and residency requirements separately and thus held that even alien war veterans must make a showing of good moral character.73 The court gave four reasons for its holding.74 First the court found that good moral character was not a subset of the residency requirements.75 Second, the court found that the plain language of § 1427(a) required a showing of good moral character

66 Id. at 1. 67 Brief of Petitioner-Appellant, at *4, O'Sullivan, 453 F.3d 809, No. 05-2943, (7th Cir. August 15, 2005), 2005 WL 3738525. 68 8 U.S.C.S. § 1439(e) (LexisNexis 2006). 69 Compare 8 U.S.C.S. § 1440 (LexisNexis 2006), with 8 U.S.C.S. § 1439(e). 70 O’Sullivan, 453 F.3d at 814. 71 Id. at 817. 72 Id. at 809. 73 Id. at 815. 74 Id. 75 Id.

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“during all periods mentioned” in the statute, regardless of whether the actual residency requirements applied.76 Third, the court concluded that the good moral character requirement was intended to be separate from the residency requirements because it was listed separately in § 1427(e).77 The court also explained that the explicit presence of the good moral character provision in § 1439 is the result of unique concerns applicable only to naturalizing peacetime veterans.78 Consequently, such a provision is not necessary in § 1440.79 The inquiry into the court’s reasoning will be further developed below in Section V.

IV. CASE LAW IN O’SULLIVAN

In O’Sullivan, the Seventh Circuit cites to three “sister circuit” decisions that all held a showing of good moral character is required in order to naturalize under § 1440.80 However, these cases, from the Second, Fifth, and Ninth Circuit Court of Appeals respectively, are distinguishable from O’Sullivan by either the standard of review or by the issue presented.81 These cases are briefly considered below for two purposes: first, to survey the landscape of recent litigation involving § 1440 and the good moral character requirement and second, to illustrate how any reliance on these cases in O’Sullivan is misguided.

A. The Second Circuit: Nolan v. Holmes

The court first considered a Second Circuit case, Nolan v. Holmes.82 There, Nolan was an alien wartime veteran who was

76 Id. (emphasis in original). 77 Id. 78 Id. at 815-16. 79 Id. 80 Id. 81 See id. at 814-15. 82 Id. at 814 (citing Nolan v. Holmes, 334 F.3d 189 (2d Cir. 2003)).

392 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 convicted of an aggravated felony.83 Once deportation proceedings began against him, however, he filed a petition for habeas corpus to terminate these removal actions in order to apply to naturalize under § 1440.84 Nolan’s petition was dismissed because the district court found that the Board of Immigration Appeals correctly held that he was ineligible to naturalize because of an inability to prove good moral character.85 Nolan appealed the denial of his petition for habeas corpus to the Second Circuit, arguing that § 1440 lacks “any specific statement requiring that an applicant . . . demonstrate good moral character, or that any particular period of good moral character [be] maintained.”86 Before deciding the issue, the Second Circuit conducted a detailed analysis of the statutory language and the legislative history of the naturalization statutes.87 In its statutory analysis, the court found particularly persuasive the differences between § 1440 and § 1439; specifically that § 1439 included an explicit good moral character requirement which was absent in § 1440.88 The Nolan court noted that:

In light of the fact that both [§ 1440] and [§ 1439] deal with the naturalization of persons who have served in the Armed Forces (differentiating between persons who served in active-duty status during wartime and those who did not) and the fact that the two sections, enacted together in 1952, contain some clearly parallel provisions, it is difficult to infer that the substantive differences between the sections were not intended. Thus . . . the appropriateness of interpreting [§ 1440] as including [a good moral character] requirement for

83 Nolan, 334 F.3d at 190. 84 Id. 85 Id. 86 Brief of Petitioner-Appellant, at *17, Nolan v. Holmes, 334 F.3d 189, No. 01-2608, (2d Cir. November 29, 2001), 2001 WL 34316415. 87 Nolan, 334 F.3d at 195-202. 88 Id. at 197.

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naturalization is simply not clear from the face of the statute.89

Thus, based on its analysis of the plain language of the statutes the Second Circuit found that “the precise interplay between [§ 1427 and § 1440] is hardly clear.”90 Despite this statutory ambiguity, however, the Nolan court found that the legislative history of the naturalization statues supported a finding that § 1440 possesses an implied good moral character requirement.91 The Second Circuit found particularly relevant a 1968 Senate Report on the differences between § 1440 and § 1439.92 That report described only “three basic differences” between the two statutes:

The peacetime serviceman must have a minimum of 3 years service, the wartime serviceman has no minimum required. The peacetime serviceman must petition while still in the service or within 6 months after its termination, the wartime serviceman has no limitation. The peacetime serviceman needs a lawful admission for permanent residence, while the wartime serviceman can substitute in its stead his induction or enlistment while in the United States.93

Notably lacking in this identification of differences is any mention of the good moral character requirement.94 Because of the ambiguity of the naturalization statutes, the Second Circuit, through the use of Chevron deference, was able to

89 Id. 90 Id. 91 Id. at 198-201. 92 Id. at 200-01. 93 S. REP. No. 90-1292, at 4519-20 (1968) (cited by Nolan, 334 F.3d at 201). 94 Nolan, 334 F.3d at 200-01.

394 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 defer to the INS interpretation of § 1440.95 And the INS interpretation of § 1440 is that alien war veterans are required to show good moral character.96 Thus, Nolan was required to show good moral character in order to naturalize.97 However, because the Nolan court deferred to the INS in reaching its holding, it is improper for the O’Sullivan court to rely upon Nolan when the issue before it must be reviewed de novo.98

B. The Fifth Circuit: Lopez v. Henley

A second case to which the Seventh Circuit cited was Lopez v. Henley, a Fifth Circuit case that, like Nolan v. Holmes, utilized Chevron deference.99 Also similar to Nolan, the issue before the Fifth Circuit arose as a petition for a writ of habeas corpus to appeal a deportation order.100 In a short opinion, the Fifth Circuit found the statutes ambiguous and relied on Nolan to find the INS interpretation reasonable.101 Specifically, the Lopez court cited a long passage from Nolan and agreed that:

Notwithstanding Congress's desire to reward aliens who have served the United States in its Armed Forces, it hardly seems unreasonable for the INS to have inferred

95 Id. at 198. 96 8 C.F.R. § 329.2(d) (LexisNexis 2006). 97 Nolan, 334 F.3d at 195. 98 The procedural posture in O’Sullivan precludes the use of Chevron deference. O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 811-12 (7th Cir. 2006); compare Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (permitting a court to defer to an administrative agency when a statute is ambiguous and the agency interpretation is reasonable), with 8 U.S.C.S. § 1421(c) (stating that a review of a denial of citizenship “shall be de novo, and the court shall make its own findings of fact and conclusions of law”). 99 O’Sullivan, 453 F.3d at 814 (citing Lopez v. Henley, 416 F.3d 455 (5th Cir. 2005)). 100 Lopez, 416 F.3d 456. 101 Id. at 457-58.

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that Congress would not have intended to single out persons trained and/or experienced in physical confrontations for elimination of the requirement of good moral character.102

Because of Chevron deference to the INS, the Fifth Circuit required a showing of good moral character by aliens seeking to naturalize under § 1440.103 Accordingly, because of the exercise of Chevron deference, and just as in Nolan, any reliance by the Seventh Circuit on Lopez is improper.104

C. The Ninth Circuit: Santamaria-Ames v. INS

The only case that the O’Sullivan court cited to that did not rely on Chevron deference was Santamaria-Ames v. INS.105 Procedurally, Santamaria-Ames is remarkably similar to O’Sullivan.106 Santamaria- Ames was born in Peru and entered into the United States Army in 1974.107 However, after three Article 15 violations and fifteen counseling sessions for disciplinary violations in his first nine months of active duty, Santamaria-Ames was honorably discharged from the Army due to unsuitability.108 His civilian life was similarly unsuccessful.109 By 1989, Santamaria-Ames had accumulated “twenty arrests, five felony convictions and twelve misdemeanor convictions.”110 In 1981 deportation proceedings began against him,

102 Id. at 458; Nolan, 334 F.3d at 198. 103 Lopez, 416 F.3d at 458. 104 See supra note 98. 105 O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 814 (7th Cir. 2006) (citing Santamaria-Ames v. Immigration and Naturalization Serv., 104 F.3d 1127, 1130 (9th Cir. 1996)). 106 Both cases arose from a denied naturalization petition. See O’Sullivan, 453 F.3d at 811; Santamaria-Ames, 104 F.3d at 1130. 107 Santamaria-Ames, 104 F.3d at 1129. 108 Id. 109 Id. 110 Id.

396 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 but, after a series of rejected appeals for a waiver of deportability, Santamaria-Ames filed to become a naturalized citizen in 1992.111 However, before the Ninth Circuit, Santamaria-Ames did not claim that alien war veterans were exempt from showing good moral character.112 Instead, he argued that the “INS is precluded from examining character issues predating the . . . one year period” before his naturalization application to determine if he meets the “good moral character” requirement.113 The Ninth Circuit concluded that conduct occurring previous to the one year period before filing could be considered in the naturalization application and the denial of Santamaria-Ames’ application for citizenship was upheld.114 Santamaria-Ames does not elucidate any answers for the Seventh Circuit. These two cases are distinguishable because Santamaria-Ames essentially conceded the primary assertion at issue in O’Sullivan.115 Thus, it would be disingenuous for the O’Sullivan court to take an unchallenged assumption from Santamaria-Ames (i.e. that alien war veterans must show good moral character in order to naturalize) and use it as precedent to support a holding where that assumption is being challenged.

V. ERRORS IN THE O’SULLIVAN ANALYSIS

It is not clear how much the Seventh Circuit actually relied upon the circuit cases it cited in O’Sullivan.116 Ultimately, however, the

111 Id. at 1130. 112 Id. 113 Id. 114 Id. at 1131. 115 Id. at 1130; O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 814 (7th Cir. 2006) (acknowledging that Santamaria-Ames “did not claim, as O’Sullivan does, that the good moral character requirement is waived for wartime veterans”). 116 While the court announces its holding with the introduction, “[l]ike our sister circuits,” it declined to cite to the cases it previously mentioned in any of its actual analysis. O’Sullivan, 453 F.3d at 815.

397 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 court seemed to base its holding on four arguments.117 First, that good moral character is not a subset of the residency requirements.118 Second, the court found that the language of § 1427(a) requires that, in order to become a naturalized citizen, alien wartime veterans must show they are of good moral character “during all periods mentioned in the subsection” including the present.119 Third, the court found that § 1427(e) indicated that Congress viewed residency requirements different from the “good moral character” requirements, because they were listed separately in that statute.120 Finally, the court explained that “[a]lthough § 1439 explicitly discusses good moral character, it does so only in contexts that are relevant only to peacetime veterans.”121 Therefore the absence of this phrase in § 1440 could not support the inference that good moral character does not need to be shown by the wartime alien veteran.122

A. First Argument: Good Moral Character is not a Subset of the Residency Requirement

The Seventh Circuit first supports its holding that aliens who naturalize under § 1440 are required to show good moral character by declining to “interpret the good moral character requirement as a subset of the residency requirement.”123 Unfortunately, little further analysis accompanies this declaration.124 The court merely adds that the good moral character requirement does not disappear simply “because it is found in a subsection with the heading ‘residence.’”125

117 Id. at 815-16. 118 Id. at 815. 119 Id. (emphasis in original). 120 Id. 121 Id. 122 Id. 123 Id. 124 Id. 125 Id.

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This explanation is not only counterintuitive, but contrary to established principles of statutory interpretation: a subset is not independent of the larger section in which it rests.126 Principles of statutory construction do allow a statute’s structure to inform its text,127 but the Seventh Circuit redefined the structure of § 1427(a) in order to change the meaning of the text by holding that § 1427(a)(3) is not a subset of § 1427.128 This redefinition transforms the good moral character requirement from being the third prong of a three element test129 to an independent test in § 1440 naturalizations.130 However, this transformation runs contrary to the “law of statutory construction that, absent ambiguity or irrational result, the literal language of the statute controls.”131 Section 1427(a) is not confusing or ambiguous: it is a subsection132 entitled “residence” and under which Congress placed three subsets,133 one of which is the

126 C.f. R. A. V. v. St. Paul, 505 U.S. 377, 401 (1992) (White, Blackmun, O’Conner, JJ, concurring) (“It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection.”) 127 See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 125 S. Ct. 2611, 2620 (2005) (stating that because “[o]rdinary principles of statutory construction apply….we must examine the statute’s text in light of context, structure, and related statutory provisions); Harris v. United States, 536 U.S. 545, 553 (2002) (interpreting a criminal statute based upon its structure). 128 O’Sullivan, 453 F.3d at 815. 129 NORMAN J. SINGER, SOUTHERLAND STATUTORY CONSTRUCTION, vol. 1A, § 21.14, 179, (West Group, 2002) (stating that where “it is the legislative intent that all of the requirements must be fulfilled in order to comply with the statute, the conjunctive ‘and’ should be used”). 130 O’Sullivan, 453 F.3d at 815. 131 Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986). 132 8 U.S.C.S. § 1427(a) (LexisNexis 2006) is a subsection of 8 U.S.C.S. § 1427. See Miram-Webster Online, http://www.m-w.com/dictionary/subsection (defining a subsection as “a subdivision or a subordinate division of a section”). 133 8 U.S.C.S. § 1427(a)(3) is a subset of 8 U.S.C.S. § 1427(a). See Miram- Webster Online, http://www.m-w.com/dictionary/subset (defining a subset as “a set each of whose elements is an element of an inclusive set”).

399 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 good moral character requirement.134 In the face of plain language, it is simply not in the power of the court to emasculate Congressional legislation by redefining statutory structure.135

B. Second Argument: Good Moral Character Must be Shown “during all periods mentioned in the subsection”

Second, the court concludes that § 1427(a) requires that the good moral character requirement must be shown “during all periods mentioned in the subsection.”136 The court finds it noteworthy that this language was selected by Congress as opposed to language that would mandate a showing of good moral character “during the period of time an alien is required to have lived in the United States before naturalizing.”137 From this, the court insists that because the five year period is still “mentioned” in § 1427(a) than “good moral character” must be shown even though there is no residency requirement to which it can attach.138 Additionally, the court finds that § 1427(a) requires an alien to “show that he is still of good moral character” – a requirement that is not conditioned upon residence.139 First, the court misquotes § 1427(a)(3) as stating that good moral character must be shown “during all periods mentioned in the subsection.”140 Rather § 1427(a)(3) properly states that “during all the periods referred to in this subsection [the alien] has been and still is a

134 8 U.S.C.S. § 1427. 135 See United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989) (explaining that when “the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms’”) (citing Caminetti v. United States, 242 U.S. 470, 485 (1917)). 136 O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 815 (7th Cir. 2006) (citing 8 USCS § 1427(a)) (emphasis in original). 137 Id. 138 Id. 139 Id. (emphasis supplied). 140 Compare O’Sullivan, 453 F.3d at 815, with 8 U.S.C.S. § 1427(a)(3) (LexisNexis 2006).

400 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 person of good moral character.”141 This is a meaningful and significant difference. The word “mention” is defined as “citing or calling attention to someone or something especially in a casual or incidental manner.”142 Consequently, under the word “mentioned,” no connection is necessary between good moral character and residency in order to make the good moral character element applicable.143 The court’s misquotation creates the false impression that § 1427(a)(1) and (2) are not intended to interact with § 1427(a)(3); but the tenuous relationship between these elements is something the court’s analysis creates, and then exploits.144 Thus, the Seventh Circuit is essentially presenting a strawman argument, because under the word “referred,” a relationship between good moral character and residency is established.145 The word “refer” is defined as “to have relation or connection” or “to direct attention usually by clear and specific mention.”146 By using “referred” instead of “mentioned,” Congress is specifically limiting the application of the good moral character requirement to that time period indicated by the residency requirements.147 This interpretation is not only substantiated by the plain language of the statute, but also by the structure of § 1427(a).148 As stated above, the good moral character requirement is, in fact, a subset of a subsection titled “residence.”149 Therefore, it is logical to conclude

141 8 U.S.C.S. § 1427(a). 142 See Miram-Webster Online, http://www.m-w.com/dictionary/mention (emphasis supplied). 143 O’Sullivan, 453 F.3d at 815. 144 Id. 145 See 8 U.S.C.S. § 1427(a). 146 Miram-Webster Online, http://www.m-w.com/dictionary/refer (emphasis supplied). 147 Marlowe v. Bottarelli, 938 F.2d 807, 812 (7th Cir. 1991) (stating that courts should “presume that legislatures and agencies mean what they say . . . the ‘plain language’ of a statute or regulation will be the best indicator of the enacting body’s will”). 148 See 8 U.S.C.S. § 1427(a). 149 See supra note 134.

401 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 that good moral character has a relationship to residency.150 Moreover, the nature of this relationship conditions the relevancy of § 1427(a)(3) on the existence of § 1427(a)(1) and (2)151 such that if the residency requirements represent a time frame of zero152 then there is no time period to which the good moral character requirement can refer.153 Second, the Seventh Circuit’s reasoning that the “still is” portion of § 1427(a)(3) requires aliens to show good moral character regardless of whether the preceding residency requirements apply154 inherently presumes that Congress is grammatically incompetent. As the Second Circuit acknowledged, albeit inconclusively, in Nolan, “linguistic purists could argue that the precise phrase used in [§ 1427(a)] -- ‘still is . . . of good moral character’ -- connotes continuity, which logically cannot be shown if there is no relevant prior period.”155 Congress could have simply switched the word “still”156 with “presently” and in that manner clearly communicated that the good moral character requirement is not limited to the periods of residency expressed in § 1427(a)(1)-(2). However, Congress chose to use “still.”157 Accordingly, the plain language of § 1427(a)(3) has a specific meaning that, contrary to the Seventh Circuit, ties good moral

150 Id. 151 See 8 U.S.C.S. § 1427(a) (stating that a naturalizing alien must show good moral character “during all the periods referred to in this subsection”). 152 See 8 U.S.C.S. § 1440(b)(2) (LexisNexis 2006). 153 Reply Brief of Petitioner-Appellant, at *2, O'Sullivan, 453 F.3d 809, No. 05-2943, (7th Cir. October 28, 2005), 2005 WL 3738527 (questioning “how a good moral character requirement that is explicitly tied to a period can still exist when the period requirement is taken away”); see Nolan v. Holmes, 334 F.3d 189, 197 (2d Cir. 2003) (recognizing the possibility that § 1440 “was not intended to compel any showing [of good moral character] that another INA section requires in connection with a period of residence”). 154 O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 815 (7th Cir. 2006). 155 Nolan, 334 F.3d at 197. 156 Merriam-Webster Online Dictionary, http://www.m-w.com/dictionary/still (follow “still[3adverb]”) (defining still as “a function word to indicate the continuance of an action or condition”). 157 8 U.S.C.S. § 1427(a)(3) (LexisNexis 2006).

402 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 character to the residency requirements.158 Therefore, if the alien naturalizing under § 1440 is exempted from both of the residency requirements in § 1427 then there is nothing to which the good moral character requirement can refer, including the continuous, “still is,” requirement of § 1427(a)(3).159

C. Third Argument: § 1427(e) Reveals Congress Views Good Moral Character and Residency as Distinct Requirements

The court’s third argument is that because § 1427(e) separates the good moral character requirement from “other qualifications for citizenship,”160 including the residency requirements, this indicates that Congress “viewed the two requirements as distinct.”161 However, the Seventh Circuit neglects to explain the implication of this distinction.162 While there is no doubt that residency requirements are different from a requirement to show good moral character,163 the question in O’Sullivan is how these two different requirements are intended to interact with each other.164 Unfortunately, § 1427(e) is unable to answer this question because it relates to a different matter entirely.165 This subsection of § 1427 is

158 8 U.S.C.S. § 1427(a); O’Sullivan, 453 F.3d at 815. 159 8 U.S.C.S. § 1440(b) (LexisNexis 2006); 8 U.S.C.S. § 1427. 160 8 U.S.C.S. § 1427(e). 161 O’Sullivan, 453 F.3d at 815. 162 Id. 163 See, e.g., 8 U.S.C.S. § 1427(a) (listing good moral character and residence as two separate requirements). 164 Compare Brief of Petitioner-Appellant, at *7, O'Sullivan, 453 F.3d 809, No. 05-2943, (7th Cir. August 15, 2005), 2005 WL 3738525 (arguing that “a showing of good moral character need only be made for required periods of residency”), with Response of Respondent-Appellee, at *10, O'Sullivan, 453 F.3d 809, No. 05-2943, (7th Cir. October 14, 2005), 2005 WL 3738526 (acknowledging that in § 1440 “Congress clearly recognized . . . that some of the general requirements, such as residency, may be waived[, b]ut there is no indication from the text of the statutes that Congress intended to waive a requirement of good moral character for naturalization purposes”). 165 See 8 U.S.C.S. § 1427(e).

403 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 solely concerned with the ability of the Attorney General to take into consideration issues of good moral character and residence beyond the scope of the five year period given in § 1427(a)(1).166 Thus, while § 1427(e) identifies good moral character and residence as separate requirements, such a distinction sheds no light upon the way these two requirements interact in § 1427(a).167

D. Fourth Argument: Distinguishing Between § 1439 and § 1440

Finally, the Seventh Circuit erred when it neglected to appreciate the significance of the presence of the good moral character requirement in § 1439 and the absence of this or similar requirement in § 1440.168 Instead of taking this plain difference at its face, the O’Sullivan court relegated this crucial dissimilarity in the statutes to a difference in the time frames under which veterans may naturalize.169 According to the court, the purpose for explicitly mentioning the good moral character requirement in the context of § 1439 is to allow peacetime veterans to utilize their military records to meet the requirements of § 1427(a).170 The court explains this is necessary because aliens naturalizing under § 1439 must do so no later than six months after being honorably discharged and therefore may need to

166 See Santamaria-Ames v. Immigration and Naturalization Serv., 104 F.3d 1127, 1132 (9th Cir. 1996) (holding that “the pertinent inquiry is whether the petitioner is presently of good moral character and has demonstrated good moral character [during the statutory period] . . . [but] [c]riminal conduct and other behavior prior to [this] period may be examined”); Yuen Jung v. Barber, 184 F.2d 491, 495 (9th Cir. 1950) (holding that the statutory five year period is the only material determiner of good moral character, but prior periods are “circumstantially relevant as bearing upon petitioner’s character”). 167 See 8 U.S.C.S. § 1427(e); 8 U.S.C.S. § 1427(a). 168 O’Sullivan v. United States Citizenship and Immigration Serv., 453 F.3d 809, 815-16 (7th Cir. 2006); 8 U.S.C.S. § 1439(e); 8 U.S.C.S. § 1440. 169 O’Sullivan, 453 F.3d at 815 (explaining that “[u]nlike wartime veterans, peacetime veterans must serve in the military one full year and apply within six months of discharge, or while still serving in the military”); compare 8 U.S.C.S. § 1439(a), with 8 U.S.C.S. § 1440(a). 170 O’Sullivan, 453 F.3d at 815.

404 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 rely upon military records to establish good moral character.171 The court elaborated, that it was not necessary for Congress to include a similar provision in § 1440, because wartime veterans often have shorter lengths of service and may apply for naturalization long after their service has ended.172 Therefore, according to the Seventh Circuit, “military records could be significantly less helpful in determining their current moral character. It stands to reason, then, that Congress would not set hard-and-fast rules on the use of military records as a means for wartime aliens to prove good moral character.”173 The court’s explanation does not adequately explain this discrepancy between § 1439 and § 1440 for three reasons. First, while alien wartime veterans may choose to naturalize long after they leave military service as the Seventh Circuit suggests,174 they need not do so.175 In the event that a wartime veteran opted to naturalize immediately after being discharged or while still in military service, O’Sullivan requires that soldier to prove good moral character.176 In such circumstances, the alien wartime veteran has same reliance on military records to prove good moral character as an alien serving in a time of peace and naturalizing under § 1439.177 Because the reliance on recent military records is the same in both scenarios, the Seventh Circuit’s justification of the presence of the good moral character provision in § 1439 suggests that Congress should have included a

171 Id. 172 Id. 173 Id. at 815-16. 174 Id. 175 Alien wartime veterans can apply to naturalize during their military service. See 8 U.S.C.S. § 1440(c) (stating that the successful naturalization of a soldier can be revoked if they are “separated from the service under other than honorable conditions”). 176 O’Sullivan, 453 F.3d at 816 (holding that aliens naturalizing under § 1440 must satisfy the good moral character provision in § 1427(a)). 177 Cf. O’Sullivan, 453 F.3d at 815 (explaining that peacetime veterans need the good moral character provision of § 1439(e) in order to prove good moral character through recent military records).

405 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 similar provision in § 1440.178 Just like aliens who naturalize under § 1439, alien wartime veterans naturalizing under § 1440 need a good moral character provision that allows them to “show good moral character during their recent service through military records.”179 Yet no similar, or any, good moral character provision exists in § 1440.180 Thus, there are two explanations as to why § 1439 has a good moral character provision and § 1440 does not, either Congress overlooked the possibility that veterans naturalizing under § 1440 might do so immediately or else the court’s analysis on this provision was incomplete.181 Second, the Seventh Circuit’s analysis also fails to consider the relevancy of § 1427(e) on the differences between § 1439 and § 1440.182 Section 1427(e) provides that the Attorney General “may take into consideration as a basis for [determining good moral character] the applicant’s conduct and acts at any time prior to that period.183 Accordingly, if an alien naturalizing under § 1440 is subject to the good moral character requirement in § 1427, then the Attorney General may find old military records of significant interest to reach a conclusion concerning an applicant’s good moral character.184 Yet there is no provision in § 1440 that provides for the use of old military records to prove good moral character, despite the inclusion of such a provision in § 1439.185 Finally, nowhere on this issue does the Seventh Circuit in O’Sullivan cite to an applicable and extensive legislative record.186

178 Id. 179 Id. 180 See 8 U.S.C.S. § 1440 (LexisNexis 2006). 181 See supra text accompanying notes 174-80. 182 O’Sullivan, 453 F.3d at 815-16. 183 8 U.S.C.S. § 1427(e). 184 But see O’Sullivan, 453 F.3d at 815 (explaining that aliens naturalizing under § 1440 may be far removed from their military service so that their “military records could be significantly less helpful in determining their current moral character”) (emphasis supplied). 185 Compare 8 U.S.C.S. § 1439(e) (LexisNexis 2006), with 8 U.S.C.S. § 1440. 186 See O’Sullivan, 453 F.3d at 812-16.

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Unfortunately, however, the lack of citation did not prevent the court from asserting what are essentially Congressional intent arguments.187 Such analysis is particularly troubling when the court is attempting to explain and rationalize why one statute contains a clause that a functionally similar statute does not; especially when both statutes were “enacted together . . . [and] contain some clearly parallel provisions.”188 The Supreme Court has made this pillar of statutory interpretation clear: “[w]e do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”189 This canon of statutory construction is particularly relevant in O’Sullivan, because of the Seventh Circuit’s choice to rely solely on the plain language of the statutes to support its reasoning.190 This critique of the Seventh Circuit’s reasoning is further strengthened by legislation that occurred after the O’Sullivan opinion was issued.191 Just less than three months after the Seventh Circuit decided O’Sullivan, a bill was proposed in the Senate that would add a good moral character requirement to § 1440.192 Entitled the “Soldiers to Citizens Act,” this bill would amend § 1440 to require an alien wartime veteran to “demonstrate to the military chain of command . . . good moral character.”193 This proposal by former Senate Majority Leader Bill Frist, serves as an additional indicator that

187 Id. at 815-16 (explaining the reasons why Congress mentions good moral character in § 1439 but not in § 1440). 188 Nolan v. Holmes, 334 F.3d 189, 197 (2d Cir. 2003). 189 Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341 (2005). 190 See O’Sullivan, 453 F.3d at 812-16. 191 S. 3947, 109th Cong. (2006). 192 Id. 193 Id.

407 SEVENTH CIRCUIT REVIEW Volume 2, Issue 1 Fall 2006 the plain language of § 1440 does not currently require naturalizing wartime veterans to prove good moral character.194

CONCLUSION

The O’Sullivan court erred in its holding that alien wartime veterans need to show good moral character in order to naturalize under § 1440. The Seventh Circuit not only failed to properly interpret the plain language of the naturalization statutes, including adequately explaining why § 1439 included a good moral character provision but § 1440 did not, but it also misquoted a relevant part of § 1440 and then relied upon that misquotation to reach its conclusion. Finally, the court did not cite to any legislative history, though it presumed to infer Congressional intent to support an opinion that ran contrary to the plain language of the relevant statutes. Whether based on policy preferences or simply out of a desire not to be the first circuit to break rank on this issue, the O’Sullivan court erred in interpreting § 1427 and § 1440 to require a showing of good moral character from alien wartime veterans. While this ruling impacts a great many alien veterans serving in the armed forces, the effect of this impact is likely to be slight. If legislation passes that adds an explicit good moral requirement to § 1440 then O’Sullivan will not present any adverse consequences to veterans seeking to naturalize under § 1440. However, until such legislation passes, it is possible that O’Sullivan will discourage aliens from serving in the military, because misconstruing the plain language of § 1440 undermines the certainty and possibility of naturalization.

194 Compare 8 U.S.C.S. § 1440 (LexisNexis 2006), with S. 3947, 109th Cong. (2006).

408